Anti-terrorism, Crime and Security Act 2001

Section 3

SCHEDULE 2 U.K. Terrorist property: amendments

PART 1 U.K. Account monitoring orders

1 (1) The Terrorism Act 2000 is amended as follows. U.K.

(2) The following section is inserted after section 38—

“38A Account monitoring orders

Schedule 6A (account monitoring orders) shall have effect.”

(3) The following Schedule is inserted after Schedule 6—

“SCHEDULE 6A U.K. ACCOUNT MONITORING ORDERS

Introduction U.K.

1 (1) This paragraph applies for the purposes of this Schedule.

(2) A judge is—

(a) a Circuit judge, in England and Wales;

(b) the sheriff, in Scotland;

(c) a Crown Court judge, in Northern Ireland.

(3) The court is—

(a) the Crown Court, in England and Wales or Northern Ireland;

(b) the sheriff, in Scotland.

(4) An appropriate officer is—

(a) a police officer, in England and Wales or Northern Ireland;

(b) the procurator fiscal, in Scotland.

(5) “Financial institution” has the same meaning as in Schedule 6.

Account monitoring orders U.K.

2 (1) A judge may, on an application made to him by an appropriate officer, make an account monitoring order if he is satisfied that—

(a) the order is sought for the purposes of a terrorist investigation,

(b) the tracing of terrorist property is desirable for the purposes of the investigation, and

(c) the order will enhance the effectiveness of the investigation.

(2) The application for an account monitoring order must state that the order is sought against the financial institution specified in the application in relation to information which—

(a) relates to an account or accounts held at the institution by the person specified in the application (whether solely or jointly with another), and

(b) is of the description so specified.

(3) The application for an account monitoring order may specify information relating to—

(a) all accounts held by the person specified in the application for the order at the financial institution so specified,

(b) a particular description, or particular descriptions, of accounts so held, or

(c) a particular account, or particular accounts, so held.

(4) An account monitoring order is an order that the financial institution specified in the application for the order must—

(a) for the period specified in the order,

(b) in the manner so specified,

(c) at or by the time or times so specified, and

(d) at the place or places so specified,

provide information of the description specified in the application to an appropriate officer.

(5) The period stated in an account monitoring order must not exceed the period of 90 days beginning with the day on which the order is made.

Applications U.K.

3 (1) An application for an account monitoring order may be made ex parte to a judge in chambers.

(2) The description of information specified in an application for an account monitoring order may be varied by the person who made the application.

(3) If the application was made by a police officer, the description of information specified in it may be varied by a different police officer.

Discharge or variation U.K.

4 (1) An application to discharge or vary an account monitoring order may be made to the court by—

(a) the person who applied for the order;

(b) any person affected by the order.

(2) If the application for the account monitoring order was made by a police officer, an application to discharge or vary the order may be made by a different police officer.

(3) The court—

(a) may discharge the order;

(b) may vary the order.

Rules of court U.K.

5 (1) Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to account monitoring orders.

(2) In Scotland, rules of court shall, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995 (c. 46), be made by Act of Adjournal.

Effect of orders U.K.

6 (1) In England and Wales and Northern Ireland, an account monitoring order has effect as if it were an order of the court.

(2) An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed).

Statements U.K.

7 (1) A statement made by a financial institution in response to an account monitoring order may not be used in evidence against it in criminal proceedings.

(2) But sub-paragraph (1) does not apply—

(a) in the case of proceedings for contempt of court;

(b) in the case of proceedings under section 23 where the financial institution has been convicted of an offence under any of sections 15 to 18;

(c) on a prosecution for an offence where, in giving evidence, the financial institution makes a statement inconsistent with the statement mentioned in sub-paragraph (1).

(3) A statement may not be used by virtue of sub-paragraph (2)(c) against a financial institution unless—

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

by or on behalf of the financial institution in the proceedings arising out of the prosecution.”

PART 2 U.K. Restraint orders

2 (1) Part 1 of Schedule 4 to the Terrorism Act 2000 (c. 11) (forfeiture orders under section 23 of that Act: England and Wales) is amended as follows. U.K.

(2) In paragraph 5 (restraint orders) for sub-paragraph (2) substitute—

“(2) The High Court may also make a restraint order under this paragraph where—

(a) a criminal investigation has been started in England and Wales with regard to an offence under any of sections 15 to 18,

(b) an application for a restraint order is made to the High Court by the person who the High Court is satisfied will have the conduct of any proceedings for the offence, and

(c) it appears to the High Court that a forfeiture order may be made in any proceedings for the offence.”

(3) In paragraph 5(3) for “the proceedings” substitute “ any proceedings ”.

(4) In paragraph 5 after sub-paragraph (5) insert—

“(6) In this paragraph “criminal investigation” means an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained whether a person should be charged with an offence.”

(5) For paragraph 6(3) substitute—

“(3) A restraint order made under paragraph 5(1) shall in particular be discharged on an application under sub-paragraph (2) if the proceedings for the offence have been concluded.

(4) A restraint order made under paragraph 5(2) shall in particular be discharged on an application under sub-paragraph (2)—

(a) if no proceedings in respect of offences under any of sections 15 to 18 are instituted within such time as the High Court considers reasonable, and

(b) if all proceedings in respect of offences under any of sections 15 to 18 have been concluded.”

(6) In paragraph 8(3) for “the proposed proceedings” substitute “ any proceedings for an offence under any of sections 15 to 18 ”.

(7) In paragraph 9(1) (compensation where restraint order discharged) for “paragraph 6(3)(a)” substitute “ paragraph 6(4)(a) ”.

3 (1) Part 2 of Schedule 4 to the Terrorism Act 2000 (c. 11) (forfeiture orders under section 23 of that Act: Scotland) is amended as follows. U.K.

(2) In paragraph 18 (restraint orders) for sub-paragraph (2) substitute—

“(2) The Court of Session may also make a restraint order on such an application where—

(a) a criminal investigation has been instituted in Scotland with regard to an offence under any of sections 15 to 18, and

(b) it appears to the Court of Session that a forfeiture order may be made in any proceedings for the offence.”

(3) In paragraph 18(3) for “the proceedings” substitute “ any proceedings ”.

(4) In paragraph 18 after sub-paragraph (5) insert—

“(6) In this paragraph “criminal investigation” means an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained whether a person should be charged with an offence.”

(5) For paragraph 19(3) substitute—

“(3) A restraint order made under paragraph 18(1) shall in particular be recalled on an application under sub-paragraph (2) if the proceedings for the offence have been concluded.

(3A) A restraint order made under paragraph 18(2) shall in particular be discharged on an application under sub-paragraph (2)—

(a) if no proceedings in respect of offences under any of sections 15 to 18 are instituted within such time as the Court of Session considers reasonable, and

(b) if all proceedings in respect of offences under any of sections 15 to 18 have been concluded.”

(6) In paragraph 23(1) for “19(3)(a)” substitute “ 19(3A)(a) ”.

4 (1) Part 3 of Schedule 4 to the Terrorism Act 2000 (forfeiture orders under section 23 of that Act: Northern Ireland) is amended as follows. U.K.

(2) In paragraph 33 (restraint orders) for sub-paragraph (2) substitute—

“(2) The High Court may also make a restraint order under this paragraph where—

(a) a criminal investigation has been started in Northern Ireland with regard to an offence under any of sections 15 to 18,

(b) an application for a restraint order is made to the High Court by the person who the High Court is satisfied will have the conduct of any proceedings for the offence, and

(c) it appears to the High Court that a forfeiture order may be made in any proceedings for the offence.”

(3) In paragraph 33(3) for “the proceedings” substitute “ any proceedings ”.

(4) In paragraph 33 after sub-paragraph (5) insert—

“(6) In this paragraph “criminal investigation” means an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained whether a person should be charged with an offence.”

(5) For paragraph 34(3) substitute—

“(3) A restraint order made under paragraph 33(1) shall in particular be discharged on an application under sub-paragraph (2) if the proceedings for the offence have been concluded.

(4) A restraint order made under paragraph 33(2) shall in particular be discharged on an application under sub-paragraph (2)—

(a) if no proceedings in respect of offences under any of sections 15 to 18 are instituted within such time as the High Court considers reasonable, and

(b) if all proceedings in respect of offences under any of sections 15 to 18 have been concluded.”

(6) In paragraph 38(4), in the definition of “prosecutor”, for “the proposed proceedings” substitute “ any proceedings for an offence under any of sections 15 to 18 ”.

(7) In paragraph 39(1) (compensation where restraint order discharged) for “paragraph 34(3)(a)” substitute “ paragraph 34(4)(a) ”.

PART 3 U.K. Disclosure of information

5 (1) The Terrorism Act 2000 (c. 11) is amended as follows. U.K.

(2) The following sections are inserted after section 21—

“21A Failure to disclose: regulated sector

(1) A person commits an offence if each of the following three conditions is satisfied.

(2) The first condition is that he—

(a) knows or suspects, or

(b) has reasonable grounds for knowing or suspecting,

that another person has committed an offence under any of sections 15 to 18.

(3) The second condition is that the information or other matter—

(a) on which his knowledge or suspicion is based, or

(b) which gives reasonable grounds for such knowledge or suspicion,

came to him in the course of a business in the regulated sector.

(4) The third condition is that he does not disclose the information or other matter to a constable or a nominated officer as soon as is practicable after it comes to him.

(5) But a person does not commit an offence under this section if—

(a) he has a reasonable excuse for not disclosing the information or other matter;

(b) he is a professional legal adviser and the information or other matter came to him in privileged circumstances.

(6) In deciding whether a person committed an offence under this section the court must consider whether he followed any relevant guidance which was at the time concerned—

(a) issued by a supervisory authority or any other appropriate body,

(b) approved by the Treasury, and

(c) published in a manner it approved as appropriate in its opinion to bring the guidance to the attention of persons likely to be affected by it.

(7) A disclosure to a nominated officer is a disclosure which—

(a) is made to a person nominated by the alleged offender’s employer to receive disclosures under this section, and

(b) is made in the course of the alleged offender’s employment and in accordance with the procedure established by the employer for the purpose.

(8) Information or other matter comes to a professional legal adviser in privileged circumstances if it is communicated or given to him—

(a) by (or by a representative of) a client of his in connection with the giving by the adviser of legal advice to the client,

(b) by (or by a representative of) a person seeking legal advice from the adviser, or

(c) by a person in connection with legal proceedings or contemplated legal proceedings.

(9) But subsection (8) does not apply to information or other matter which is communicated or given with a view to furthering a criminal purpose.

(10) Schedule 3A has effect for the purpose of determining what is—

(a) a business in the regulated sector;

(b) a supervisory authority.

(11) For the purposes of subsection (2) a person is to be taken to have committed an offence there mentioned if—

(a) he has taken an action or been in possession of a thing, and

(b) he would have committed the offence if he had been in the United Kingdom at the time when he took the action or was in possession of the thing.

(12) A person guilty of an offence under this section is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both;

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.

(13) An appropriate body is any body which regulates or is representative of any trade, profession, business or employment carried on by the alleged offender.

(14) The reference to a constable includes a reference to a person authorised for the purposes of this section by the Director General of the National Criminal Intelligence Service.

21B Protected disclosures

(1) A disclosure which satisfies the following three conditions is not to be taken to breach any restriction on the disclosure of information (however imposed).

(2) The first condition is that the information or other matter disclosed came to the person making the disclosure (the discloser) in the course of a business in the regulated sector.

(3) The second condition is that the information or other matter—

(a) causes the discloser to know or suspect, or

(b) gives him reasonable grounds for knowing or suspecting,

that another person has committed an offence under any of sections 15 to 18.

(4) The third condition is that the disclosure is made to a constable or a nominated officer as soon as is practicable after the information or other matter comes to the discloser.

(5) A disclosure to a nominated officer is a disclosure which—

(a) is made to a person nominated by the discloser’s employer to receive disclosures under this section, and

(b) is made in the course of the discloser’s employment and in accordance with the procedure established by the employer for the purpose.

(6) The reference to a business in the regulated sector must be construed in accordance with Schedule 3A.

(7) The reference to a constable includes a reference to a person authorised for the purposes of this section by the Director General of the National Criminal Intelligence Service.”

(3) In section 19 after subsection (1) insert—

“(1A) But this section does not apply if the information came to the person in the course of a business in the regulated sector.”

(4) In section 19 after subsection (7) insert—

“(7A) The reference to a business in the regulated sector must be construed in accordance with Schedule 3A.

(7B) The reference to a constable includes a reference to a person authorised for the purposes of this section by the Director General of the National Criminal Intelligence Service.”

(5) In section 20 after subsection (4) insert—

“(5) References to a constable include references to a person authorised for the purposes of this section by the Director General of the National Criminal Intelligence Service.”

(6) The following Schedule is inserted after Schedule 3—

“SCHEDULE 3A U.K. REGULATED SECTOR AND SUPERVISORY AUTHORITIES

PART 1 U.K. REGULATED SECTOR

Business in the regulated sector U.K.

1 (1) A business is in the regulated sector to the extent that it engages in any of the following activities—

(a) accepting deposits by a person with permission under Part 4 of the Financial Services and Markets Act 2000 (c. 8) to accept deposits (including, in the case of a building society, the raising of money from members of the society by the issue of shares);

(b) the business of the National Savings Bank;

(c) business carried on by a credit union;

(d) any home-regulated activity carried on by a European institution in respect of which the establishment conditions in paragraph 13 of Schedule 3 to the Financial Services and Markets Act 2000, or the service conditions in paragraph 14 of that Schedule, are satisfied;

(e) any activity carried on for the purpose of raising money authorised to be raised under the National Loans Act 1968 (c. 13) under the auspices of the Director of Savings;

(f) the activity of operating a bureau de change, transmitting money (or any representation of monetary value) by any means or cashing cheques which are made payable to customers;

(g) any activity falling within sub-paragraph (2);

(h) any of the activities in points 1 to 12 or 14 of Annex 1 to the Banking Consolidation Directive, ignoring an activity described in any of paragraphs (a) to (g) above;

(i) business which consists of effecting or carrying out contracts of long term insurance by a person who has received official authorisation pursuant to Article 6 or 27 of the First Life Directive.

(2) An activity falls within this sub-paragraph if it constitutes any of the following kinds of regulated activity in the United Kingdom—

(a) dealing in investments as principal or as agent;

(b) arranging deals in investments;

(c) managing investments;

(d) safeguarding and administering investments;

(e) sending dematerialised instructions;

(f) establishing (and taking other steps in relation to) collective investment schemes;

(g) advising on investments.

(3) Paragraphs (a) and (i) of sub-paragraph (1) and sub-paragraph (2) must be read with section 22 of the Financial Services and Markets Act 2000 (c. 8), any relevant order under that section and Schedule 2 to that Act.

2 (1) This paragraph has effect for the purposes of paragraph 1.

(2) “Building society” has the meaning given by the Building Societies Act 1986.

(3) “Credit union” has the meaning given by the Credit Unions Act 1979 (c. 34) or the Credit Unions (Northern Ireland) Order 1985 (S.I. 1985/1205 (N.I. 12)).

(4) “European institution” means an EEA firm of the kind mentioned in paragraph 5(b) or (c) of Schedule 3 to the Financial Services and Markets Act 2000 which qualifies for authorisation for the purposes of that Act under paragraph 12 of that Schedule.

(5) “Home-regulated activity” in relation to a European institution, means an activity—

(a) which is specified in Annex 1 to the Banking Consolidation Directive and in respect of which a supervisory authority in the home State of the institution has regulatory functions, and

(b) if the institution is an EEA firm of the kind mentioned in paragraph 5(c) of Schedule 3 to the Financial Services and Markets Act 2000, which the institution carries on in its home State.

(6) “Home State”, in relation to a person incorporated in or formed under the law of another member State, means that State.

(7) The Banking Consolidation Directive is the Directive of the European Parliament and Council relating to the taking up and pursuit of the business of credit institutions (No. 2000/12 EC).

(8) The First Life Directive is the First Council Directive on the co-ordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct life assurance (No. 79/267/EEC).

Excluded activities U.K.

3 A business is not in the regulated sector to the extent that it engages in any of the following activities—

(a) the issue of withdrawable share capital within the limit set by section 6 of the Industrial and Provident Societies Act 1965 (c. 12) by a society registered under that Act;

(b) the acceptance of deposits from the public within the limit set by section 7(3) of that Act by such a society;

(c) the issue of withdrawable share capital within the limit set by section 6 of the Industrial and Provident Societies Act (Northern Ireland) 1969 (N.I. c. 24) by a society registered under that Act;

(d) the acceptance of deposits from the public within the limit set by section 7(3) of that Act by such a society;

(e) activities carried on by the Bank of England;

(f) any activity in respect of which an exemption order under section 38 of the Financial Services and Markets Act 2000 (c. 8) has effect if it is carried on by a person who is for the time being specified in the order or falls within a class of persons so specified .

PART 2 U.K. SUPERVISORY AUTHORITIES

4 (1) Each of the following is a supervisory authority—

(a) the Bank of England;

(b) the Financial Services Authority;

(c) the Council of Lloyd’s;

(d) the Director General of Fair Trading;

(e) a body which is a designated professional body for the purposes of Part 20 of the Financial Services and Markets Act 2000.

(2) The Secretary of State is also a supervisory authority in the exercise, in relation to a person carrying on a business in the regulated sector, of his functions under the enactments relating to companies or insolvency or under the Financial Services and Markets Act 2000.

(3) The Treasury are also a supervisory authority in the exercise, in relation to a person carrying on a business in the regulated sector, of their functions under the enactments relating to companies or insolvency or under the Financial Services and Markets Act 2000.

PART 3 U.K. POWER TO AMEND

5 (1) The Treasury may by order amend Part 1 or 2 of this Schedule.

(2) An order under sub-paragraph (1) must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.”

PART 4 U.K. Financial information orders

6 (1) Paragraph 1 of Schedule 6 to the Terrorism Act 2000 (c. 11) (financial information orders) is amended as follows. U.K.

(2) In sub-paragraph (1) after “financial institution” insert “ to which the order applies ”.

(3) After sub-paragraph (1) insert—

“(1A) The order may provide that it applies to—

(a) all financial institutions,

(b) a particular description, or particular descriptions, of financial institutions, or

(c) a particular financial institution or particular financial institutions.”